ITS Testing Services (M) Sdn Bhd v 1. ) DP Fluiteq Sdn. Bhd. 2. ) Dev Menon A/L Gopalan 3. ) Peter Chang Ngi Lee 4. ) Murugan A/L Selvaraj PIHAK KETIGA DICADANGKAN Carigali-PTTEPI Operating Company Sdn Bhd

Case Significance

Illustrates the limits of discovery under Order 24, including third-party discovery under rule 7A: an applicant must identify a genuine, particularised issue and documents that actually exist and are relevant, and the court will not order discovery in aid of a speculative claim.

This High Court decision at Kuala Lumpur concerns applications for discovery — against the defendants and against a proposed third party — in an action alleging misuse of confidential information, and the impermissibility of using discovery to pursue a speculative case. The plaintiff had filed two applications: one under Order 24 rules 3 and 7 of the Rules of Court 2012 for discovery against the defendants, and one under Order 24 rule 7A for discovery against a third party, an operating company referred to as CPOC. Because the individual defendants are natural persons named only as parties, this analysis refers to them by role, while the corporate parties and the third party are named.

Discovery is a tool for obtaining documents relevant to defined issues in existing proceedings, not a licence to fish for a case that has not been properly pleaded or particularised. The court examined whether there were serious bona fide issues to be tried, whether the alleged confidential information had been sufficiently particularised, and where the balance of convenience lay. The plaintiff's case, however, rested on speculation and conjecture: it relied on a LinkedIn post containing a photograph of the third and fourth defendants with representatives of another company in front of the third party's logo, to assert that a business relationship existed between the third party and the first defendant.

Critically, the third party had denied engaging the first defendant directly for services. Yet the plaintiff maintained that the documents it sought were relevant and in the possession of the defendants and the third party — a position the court found to defy logic, because the documents sought would only exist if there had in fact been a direct contractual relationship between the third party and the first defendant, which was denied and unproven. The judgment is a useful illustration of the limits of discovery, including third-party discovery under Order 24 rule 7A: an applicant must identify a genuine issue and documents that actually exist and are relevant to it, and the court will not order discovery in aid of a claim built on speculation.